' MIAN SAQIB NISAR, J.---The noted C.R. No,486 of 2006 and C.R.No,487 of 2006, are being decided together, as both involve the common questions of law and facts.
2. Briefly the facts of C.R.No,486 of 2006 are that Raja Muhammad Saqlain/respondent No,1, on 8-1- 2003 filed a suit for the specific performance of contract against Fazal Muhammad Khan (respondent No,2) and Muhammad Naeem Khan (respondent No,3), claiming that they as the owner and the attorney respectively had sold 2 Marlas of the land in his favour through an agreement to sell dated 22-2-2001. It may be pertinent to state here that in the agreement, there is no specific mention about the piece of the land rather it is only the share in the bigger area without the description of the accurate boundaries. During the pendency of this suit, the plaintiff moved an application seeking the amendment of the plaint so as to add the description of that 2 Marlas of land, which amendment was conceded by Muhammad Naeem Khan, the attorney of Fazal Muhammad Khan. The amendment was accordingly allowed. Muhammad Na;em Khan also gave a conceding affidavit having no objection for the decree of the suit for the specific performance filed by the Raja Muhammad Saglain. However, before the decree could be passed, the present petitioner moved an application under Order I, Rule 10, C.P.C. On the basis that Fazal Muhammad Khan through an 'agreement dated 6-12-2001 has already sold the same land with the specific boundaries to him and that the plaintiff and the defendants have now colluded to cause prejudice to the rights of the petitioners. The said application was dismissed by the learned trial Court vide order dated 18-4-2005, followed by a judgment and decreed dated 20-4-2005 in favour of the plaintiff Raja Muhammad Sag lain, which order and the decree were challenged by the petitioner through an appeal, which has been dismissed by the learned Appellate Court through the impugned judgment and decree dated 20-2-2006.
3. The facts of the other case (C.R.No,487 of 2006) are that Raja Safdar Hussain/respondent No,1 brought a suit for the specific performance against Fazal Muhammad Khan and Muhammad Naeem Khan, respondents No,2 and 3 respectively, claiming the enforcement of his agreements to sell dated 7-12-2001 and 13-12-2001 on the plea that they have sold him the specific part of the bigger area through these instruments. The said suit was pending when the petitioner moved an application under Order I, Rule 10, C.P.C. On the ground that Fazal Muhammad Khan has already sold the same land to him through the agreement dated 6-12-2001 and, therefore, he is a necessary party to the suit and any decision likely to be passed in the matter shall affect his rights as well. The said application has been rejected and the suit has been decreed by the learned Trial Court; the appeal of the petitioner has also failed.
4. Learned counsel for the petitioner in both the cases contends that as the petitioner had already filed a suit for the specific performance against Fazal Muhammad and Muhammad Naeem with regard to 3 Marlas of the land, which he had agreed to purchase on the basis of agreements to sell dated 6-12-2001 and because the same land is now the subject matter of the two suits involved in these petitions, therefore, any decision, which has been, was and is likely to be passed, would affect his rights straightaway, resultantly he was a necessary party and should have been added. It is further stated that the decree of the suit in favour of Raja Muhammad Sag lain was collusive between the plaintiff and the defendants of the case, which was maneuvered to cause prejudice to the rights of the petitioner, not only to defeat his agreement to sell, but also the suit for the specific performance which he had filed and was then Tending. Almost akin is the argument in the case of Raja Safdar Hussin as well
5. I have heard the learned counsel for the parties and find that the petitioner claims to have an agreement to sell dated 6-12-2001, which indicates that a specific portion out of bigger area has been sold to him and this when considered in the light of the two other agreements in favour of the plaintiffs of the respective cases, to some extent does correspond thereto. Resultantly, if a decree is passed in favour of both the plaintiffs of those two cases it shall affect the petitioner's right and such decrees may be passed against Fazal Muhammad Khan and Muhammad Naeem Khan but may also affect the suit for the specific performance filed by the petitioner against the vendors.
Therefore, in the circumstances the court should have permitted the petitioner to join in the suits as a defendant and allow him to contest the matters; the dismissal of his application under Order I, Rule 10, C.P.C. Was untenable and unwarranted and, therefore, the decrees, which have been passed after the dismissal of the petitioner's applications can also not sustain.
6. In the light of above, both the decrees of the courts below are set aside, the order passed on the applications under Order I, Rule 10, C.P.C,. In both the matters refusing to add the petitioner as defendant, are set aside and the case is remanded to the learned Trial Court where the petitioner shall be added as defendant and shall have a right to contest the mater by filing the written statement. In all the cases, if either of the litigants wants to move an application to become a party, he must also be so added. The matters must be transferred to one Court so that there should be no possibility of conflicting judgment.
7. At this stage, Syed Shamim Abbas Bokhari, learned counsel for the petitioner, states that Raja Naib Muhammad, the petitioner, is a witness in the agreement to sell of Safdar Hussain, in which the metes and bounds of the property have been given. But this is a plea about the merits of the case and obviously the effect of the above shall be considered by the Court blow.
' Both the revision petitions are accordingly allowed.